A DOCTOR HAS A DUTY TO DISCLOSE ALL
REASONABLE INFORMATION ABOUT A PROPOSED
TREATMENT TO HIS PATIENTS.
Does Defendant have a duty to disclose the risk associated with surgery?
The legal doctrine of informed consent can be traced back to the post-World War II Nuremberg Code, a set of guidelines drafted to ensure that unethical “medical” experiments were no longer carried out in the name of science. The doctrine is founded on the general principle that a person of the age of majority and sound mind has a legal right to determine what may be done to his or her body. Thus, when a patient is subjected to a procedure he or she has not agreed to, the physician performing that procedure is violating the patient’s legal rights and may be subject to medical malpractice litigation.
To avoid legal action, according to the doctrine of informed consent, physicians must disclose enough information for the patient to make an “informed” decision. The key pieces of information that a physician must disclose include:
- the condition being treated;
- nature and character of the proposed treatment or surgical procedure;
- anticipated results;
- recognized possible alternative forms of treatment; and
- recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment
Here, in Fact Pattern, the doctor would bear no liability for ‘failure of informed consent’ because a physician is required to disclose all reasonable information, he or she is not required to disclose a risk that is not inherent in proper performance of the procedure—a risk, in other words, that would result only from the procedure’s being performed incorrectly. The liability, if any, for the paraparesis and neurogenic bladder secondary to the fall will be passed to the entity, the nurses, and the techs with the duty to manage and care for the post-operative patient.